Standing Committee B

[Mr. James Cran in the Chair]

Criminal Justice Bill

Clause 62 - Cases that may be retried

Amendment moved [this day]: No. 342, in 
clause 62, page 38, line 38, leave out subsections (4) and (5).—[Mr. Grieve.]
 Question again proposed, That the amendment be made.

James Cran: I remind the Committee that with this we are discussing the following amendments:
 No. 301, in 
clause 62, page 38, line 38, leave out subsection (4).
 No. 302, in 
clause 62, page 39, line 1, leave out subsection (5).

Dominic Grieve: I said about three words before lunchtime arrived. As I think I explained to the Minister, I tabled the amendments because I found the wording of subsections (4) and (5) difficult. These probing amendments propose the options of deleting both subsections, deleting subsection (4) or deleting subsection (5).
 I do not have too much difficulty with subsection (4). It is fairly straightforward. As I understand it, it provides for the possibility of someone having been tried abroad for an analogous criminal offence, because we may not have a strict analogy between the foreign offence and an offence in the United Kingdom. It provides that if the facts of the case are such that they would lead to a prosecution in this country, the offence would be a qualifying offence and a retrial could take place. 
 Subsection (5) is slightly more difficult because it seems to suggest that some sort of administrative proceeding brought against a person in a foreign country could constitute a qualifying offence even though it did not amount to a criminal offence under the law of that country. That must be what it says because it uses the words, 
''however it is described in that law.''
 I seek clarification on that matter because I am intrigued about whether, in those circumstances, it would be necessary to have retrial proceedings at all. I would have thought that, in those circumstances, it might even be possible to prosecute in this country without removing the double jeopardy rule. I hope that the Minister will enlighten me on that point so that the Committee and I can understand what subsections (4) and (5) would achieve.

Simon Hughes: There are another three questions that the Minister might usefully answer in this context, and
 he will see that my hon. Friend the Member for Somerton and Frome (Mr. Heath) and I have added our names to amendments Nos. 301 and 302.
 First, will the Minister amplify the explanatory notes, which refer to the Government's intention in relation to article 55 of the Schengen convention and appear to suggest that there could be a retrial of offences that are not similarly described elsewhere? Secondly, will he explain the logic and implication of the explanatory note that suggests that the Bill does not change the criminal law in Scotland in this respect? It suggests that the clause will not change the situation in a Scottish court if there has been an acquittal in the European Union or elsewhere. What impact will the Bill have on cases that come first to the English and Welsh jurisdiction or first to the Scottish jurisdiction when there might be a retrial on the other side of the border? 
 Thirdly, will the Minister clarify the position in relation to Northern Ireland? I seek elaboration both on the point that I made earlier and on a linked question that follows from it. Until and unless the law is changed in Northern Ireland, what would be the consequences of the legislation for cases in Northern Ireland that resulted in acquittal and which might be retried in England and Wales, or the other way round? Because it is relevant in Northern Ireland, what would be the implications for Ireland, England and Wales if the provisions were to be extended to Ireland—that is, to both sides of the border? We need to be clear what we are talking about. For me, as for the hon. Member for Beaconsfield (Mr. Grieve), it is a probing exercise. 
 I observe that clause 12 of the Extradition Bill, which is being considered at this moment in another Room, proposes: 
''A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the United Kingdom where the judge exercises jurisdiction.''
 I have not thought it through entirely, but that seems to contradict what is proposed in the Bill. In any event, I would be grateful for an explanation of how the two Bills would work if enacted in the present form.

Hilary Benn: May I deal first with the question of Northern Ireland? I apologise to the Committee for having inadvertently misled hon. Members this morning on the means by which the process would be applied in Northern Ireland. I confirm what I said this morning, which is that Northern Ireland Ministers intend that the Bill should apply to Northern Ireland, but incorrectly informed the Committee that it would be done by order. In fact, we intend to do so in the Bill, and will table amendments on Report to that effect. That deals with the point raised this morning about the process. I hope that that assures the Committee; I realise, however, that it will not reassure the hon. Member for North Down (Lady Hermon), who is opposed in principle to that happening.

Simon Hughes: In that case, will the Minister explain why the Northern Ireland Office and the
 Home Office did not address that matter before the Bill was printed? It seems bizarre that it had not been thought through. Why would it not be better dealt with in a Bill dealing with criminal justice matters in Northern Ireland?

Hilary Benn: The answer to the first question is—how shall I put this?

Simon Hughes: Difficult.

Hilary Benn: No, not difficult at all. Some hon. Members will be aware that the processes by which legislation is drafted gives rise to parallel thought processes by ministerial colleagues.

Simon Hughes: Not joined-up government.

Hilary Benn: No. I was informing the Committee that after due and careful consideration, my ministerial colleagues in Northern Ireland decided that they wished the Bill to apply in Northern Ireland. They had their own considerations, consultations and discussions to take into account when reaching that decision—that is the answer to the first question. In relation to the second question, I would argue that this is a most appropriate vehicle; we are now talking about that principle.

Lady Hermon: I find that explanation even more extraordinary, given that the Government and the Northern Ireland Office have made clear their intention of devolving criminal justice and placing it with the Northern Ireland Assembly at the earliest opportunity—once the Assembly is up and running again and we have stability. I find that an extraordinary answer.

Hilary Benn: Whether the hon. Lady finds it extraordinary or not, it happens to be the case. It reflects the consideration that ministerial colleagues in Northern Ireland have given to the matter and the decision that they have reached.
 It might be helpful if I say that clause 62 provides that where qualifying offences have taken place in this country, or where this country has jurisdiction over its citizens in respect of serious offences abroad, those offences could be retried here if new evidence came to light. Therefore, if a UK citizen were tried and acquitted in a foreign court for a murder committed abroad, but important new evidence subsequently came to light, the Bill would apply and the person could be retried here.

Dominic Grieve: The Minister has resolved a matter that was troubling me. I found some slight ambiguity as to whether the clause could be used as a device to get round the normal rule that most of our jurisdiction is territorial. I had feared that we would end up retrying offences that had been tried abroad, which, on first bite, would not have qualified to be heard here anyway. However, I assume from the Minister's answer that that could not happen under any circumstances.

Hilary Benn: I am glad if I have been helpful. Just to complete the picture, similarly, a German national who was tried and acquitted in Germany in respect of a murder that was alleged to have been committed in
 the UK could be subject to the Bill's provisions, in that a retrial might be possible here. It works both ways. Therefore, a foreign acquittal, which would currently raise a double jeopardy bar to a trial here, would, for the purposes of the Bill, be given equivalent status under these subsections to acquittals here. That is eminently logical, because if the UK had jurisdiction to try a case in the first instance, it should have jurisdiction to reopen it regardless of where the acquittal took place—subject to all the safeguards provided by the Bill. The fundamental question is, why should defendants who are acquitted abroad in cases that could have been tried here have greater protection than defendants whose cases were tried here when it comes to the application of these provisions?
 In subsection (5), the point about punishable conduct points to criminal provisions. The hon. Member for Beaconsfield is right that the question of double jeopardy only arises regarding acquittals in criminal proceedings. I hope that that is helpful. In relation to Scotland—

Dominic Grieve: The Minister half answered my question. If that is the case, why do we have, at the end of subsection (5), the phrase
''however it is described in that law''?
 Is that because Home Office advisers have flagged up instances of criminal offences, punishable under the law, that are for some reason not so described, or described in another way? I read that as applying to the possibility of some administrative sanction rather than a criminal one. That does exist in some foreign jurisdictions—some strange things go on in other countries. I should like clarification as to why it was thought that that phrase was needed.

Hilary Benn: We are talking here about the equivalence of what will constitute a qualifying offence. Because offences are described and framed differently in other jurisdictions, it will be necessary to undertake an equivalence exercise in relation to the provisions that we are discussing. In the case of murder, the qualifying offences will be pretty clear and the way that it is described in other jurisdictions will be identical. However, that might not necessarily be the case for some other offences. We shall have to go through a process to determine whether there is an equivalence of the offence that would bring it within the remit of a qualifying offence in the Bill. That would be a matter for discussion between the prosecutors in the country from which we seek someone's extradition and the Director of Public Prosecutions in the United Kingdom. In that instance, only the DPP here could make the application, so he would have to be persuaded that the qualifying offence was equivalent. Any continuing argument about the nature of that equivalence would be subject to consideration in the Court of Appeal.

Simon Hughes: I should have asked earlier, but what the Minister has just said has prompted my question. Is this a unilateral Government initiative or does it derive, for example, from a Council of Europe proposal? Are all member states to adopt the initiative simultaneously to produce a Europe-wide probability
 of being able to retry in the case of new evidence coming to light? If it is not a general proposal across Europe at some stage—the question was asked differently earlier—may we have lists of those countries that already have the proposal and those that do not?

Hilary Benn: The initiative is not the product of the question that the hon. Gentleman asked. We have considered how we shall apply the double jeopardy provisions to the circumstances that are covered by subsections (4) and (5).
 In answer to the question about other jurisdictions, I am sure that those members who asked questions this morning will have, as I have done, refreshed their memories by looking at the Law Commission's consultation paper No. 156 on double jeopardy, which was published in 1999. That paper contained an extremely helpful summary.

Humfrey Malins: I must have missed it.

Hilary Benn: I am surprised that the hon. Gentleman upbraids me in such stern terms for not having answers at my fingertips this morning in Committee. Set out in the consultation paper is a helpful description of the law on double jeopardy in other jurisdictions. However, it may be helpful to say that Finland, Denmark and Germany all provide for exceptions to the double jeopardy rule in different ways, subject to particular conditions that are not exactly similar to those that we are discussing. Members who are interested in the subject, such as the hon. Member for Woking (Mr. Malins) and many others, will, if they have not already looked at it, turn their attention to the description in the consultation paper. I hope that answers all the questions on that matter.
 I come to Scotland. An acquittal that occurred in Scotland would not be covered.

Simon Hughes: Why not?

Hilary Benn: The Scottish Executive have decided that they do not want that to happen. That is a product of devolution.

Dominic Grieve: I just want to be sure that I understand the point. If an individual commits an offence in Scotland for which he has been acquitted, he cannot be retried in England for that offence. However, if an individual is acquitted of an offence in Germany, he can be retried here.

Hilary Benn: That is indeed entirely correct. However, it is not the first example that hon. Members will have come across that is a product of the devolved system that we now choose to operate. The matter is one for parliamentary and ministerial colleagues in Scotland to consider further.

Dominic Grieve: In actual fact, it raises an interesting point. The origin and background is not devolution, but the Scottish law's special position in the Act of Union. I find it extraordinary, having moved to devolution, that instead of treating Scotland as having a separate legal system and taking a power to ourselves which is of no concern to the Scots, we have decided to defer to them; yet we have not consulted the
 German, French, Danish, Finnish or any other Government on their retrying people for offences committed in their jurisdictions.

Hilary Benn: I hear the point that the hon. Gentleman makes. I have described the situation as it is; it is the product of our devolved system. When it comes to extradition—this is important—those other jurisdictions will apply their own laws as to whether they should grant extradition on receipt of an application in relation to these provisions.

Dominic Grieve: I am sorry to press the Minister. I accept that it is the result of our legal framework, but it is difficult to see why the UK Government should feel inhibited, acting as the Government of England, in enacting a Bill for that purpose. It would then be up to the Scottish authorities whether they wanted to co-operate if we ever wanted to implement the procedure.

Hilary Benn: The situation that I have described reflects the nature of our relationship with the Scottish Executive and the Scottish Parliament, and the particular respect that we accord to their views on such matters. To answer the related point, I was saying a moment ago that if other jurisdictions have a law that says that they are not agreeable to double jeopardy, that would prevent extradition to the UK. That is a protection for those other jurisdictions in such circumstances.

Simon Hughes: Because the Minister has been careful and detailed in his answers, will he say whether there has been consultation with or formal notification to the other European Union member state Governments, whose criminal jurisdictions will at least indirectly be affected by that change?

Hilary Benn: Not that I am aware of.
 I wonder whether I can take the opportunity to touch on two other questions that were raised this morning and provide the Committee with some further information. My hon. Friend the Member for Nottingham, North (Mr. Allen) raised the example of a memoir that had been published in which someone said that they had done it, and he asked whether that would provide new and compelling evidence for the purposes of the clause, including its relationship to subsections (4) and (5). That may well be the case; it would clearly depend on the nature of the evidence. It would be new, but it would be for a judge to decide how compelling it was. 
 I was asked with vigour by the hon. Member for Woking for a list of the other offences that carry a statutory life sentence that are not in schedule 4. I have such a list. I shall forgo reading it all, but I shall give some examples and I will be happy to circulate the list to hon. Members. The list includes the following: using chloroform to commit or assist in committing an indictable offence; impeding the saving of life from a shipwreck; administering or using drugs or using instruments to procure an abortion; a householder permitting a girl under 13 to use premises for intercourse; having possession of a class A drug with intent to supply when tried on indictment; and assault with intent to rob. Further examples are aiding or abetting an offence under section (2) or (3) of the 
 Explosive Substances Act 1883, and acts likely to endanger of aircraft. 
 I apologise for not having responded to the question on treason this morning. I shall reflect upon the point.

James Clappison: Ah.

Hilary Benn: I shall, because it seemed that a good point had been made.

Graham Allen: Is there a qualification for first offences?

Hilary Benn: For the avoidance of doubt, there is no such qualification for any of those offences.

Simon Hughes: Will the Minister tell us what is the total number of offences on that list?

Hilary Benn: Not at the moment. If I get a chance, I shall count them. I shall certainly provide that figure in the further information that I have promised.
 I recognise the probing nature of the amendments. They have given rise to a useful discussion.

Humfrey Malins: First, if I seemed to speak with too much vigour this morning, I apologise. It is not my style; I am normally much more relaxed. Secondly, does the Minister not agree that our gentle probing—or even vigorous probing—has resulted in us being given some useful information?

Hilary Benn: I accept that entirely; the hon. Gentleman was doing his job very effectively, as he always does.
 I recognise that they are probing amendments—I shall resist them—but for the reasons that I have set out it seems logical and sensible to include those provisions in the Bill. I therefore hope that the Committee will agree to them.

Simon Hughes: There is one matter that, accidentally, the Minister has not dealt with. If the law remains unchanged for Northern Ireland, what is the position in relation to offences committed there with a retrial here, and vice versa?

James Cran: Order. I thought that the Minister had finished.

Hilary Benn: I had indeed, Mr. Cran. However, I undertake to give the hon. Member for Southwark, North and Bermondsey (Simon Hughes) a definitive answer by writing to him.

Dominic Grieve: The debate has gone wider than I expected. The Minister has reassured me 99.9 per cent. of the way on the wording of subsection (5)—but perhaps not completely. When he and his officials have a moment to reread it, they will see the curious way in which the phrase
''Conduct punishable under the law'',
 which fixes something as a criminal offence, is to an extent negated by the phrase at the end of the subsection: 
''however it is described in that law.''
 I understand what it is getting at, but I would be grateful if the Minister went away and thought that 
 through. I want to be sure that the second phrase cannot be taken to have done away with the requirement that it is conduct ''punishable under the law''. It is to do with the administrative sanctions.

Paul Stinchcombe: I wonder whether the hon. Gentleman finds any reassurance in the requirement under the clause that such conduct would still have to be the equivalent of a qualifying offence?

Dominic Grieve: Yes, I think I do. That is why I said that I was 99.9 per cent. of the way there.

Hilary Benn: One hundred per cent.

Dominic Grieve: I am never 100 per cent. anywhere in matters human, never mind the fallibility of taking the Minister's assurances too readily. However, I am grateful to the hon. Member for Wellingborough (Mr. Stinchcombe); I think we are there. If the Minister would ponder on it, we can then ignore that issue.
 The provision on Scotland is fascinating. It gives rise to some quite extraordinary consequences. I accept the logic behind it. Unlike foreign jurisdictions, with whom we have to have extradition treaties, relations between the English and Scottish criminal enforcement procedure, as opposed to the criminal justice system, are simple: we operate one system. Executing a warrant for someone's arrest in Glasgow does not require any administrative scrutiny.

Simon Hughes: It happened only yesterday.

Dominic Grieve: Indeed it did. It can happen readily. The Scots, not wishing to have a double jeopardy rule—perhaps they are right; they are certainly entitled to their view—would not want that special relationship to be exploited in a way that allowed police officers to summon witnesses from Scotland in order to participate in a procedure that they were not happy with. The only alternative would be some sort of extradition procedure from Scotland. However, I would not expect the Minister to be happy with a procedure that tended to emphasise a degree of Scots separateness.
 I do not know what the procedures under Schengen will be, but I assume that although other countries have retrials in their own jurisdictions, we certainly could not get someone from Scotland to retry them, although we would be quite happy to send them from London to be retried. I assume that if someone has been acquitted in Germany, and the German authorities want to waive the double jeopardy rule—I think I have got it right; the Minister said that they have a way of doing that—he ought to go and live in Glasgow, because he could not be extradited to Germany from there, any more than he could be subject to the English procedure for retrial.

Lady Hermon: I draw the hon. Gentleman's attention to the human rights legislation, and the guarantee of a fair trial to everyone in the jurisdiction of the United Kingdom. Interestingly, article 14 guarantees for everyone in that jurisdiction that there should no discrimination in the exercise of those rights and freedoms, whether because of political opinion or for any other reason. It seems unacceptable that within
 the UK's jurisdiction, there will be discrimination between those in Scotland and those in the rest of the UK—and those in Northern Ireland, to which I am bitterly opposed.

Dominic Grieve: I think that what the hon. Lady says is absolutely correct. That said, however, even during the time of full parliamentary union, the United Kingdom has always accepted a measure of diversity in which laws apply north of the border and which apply in the south. Scotland was legislated for separately even when we were doing that here, so there has always been freedom to provide what the Scots wanted—or what the Government thought they should have, as the Scottish nationalists might put it.
 It is an unusual state of affairs when one moves from specific offences to a more general philosophical application. We are going to end up in these islands of the Untied Kingdom with a system under which the philosophical principle of double jeopardy has been breached here, but not north of the border. It is an unhappy state of affairs, but we have no means of remedying it—unless we were to assert our powers over the Scottish Parliament, which I would not dream of suggesting. Of course, it might be argued that the Minister should not be straying down that road, but he has clearly decided that it is appropriate. 
 I hope that the public will get come to realise the oddity of the situation. I suspect that they are not yet aware of the fundamental change that is being introduced in one part of the UK but will not apply in another. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 300, in
clause 62, page 39, line 4, leave out subsection (6).
 This matter can be taken very shortly—[Interruption.] We have discussed it, so I hope it may be taken shortly, although the debate may move on somewhat—it depends whether anyone wishes to resurrect it. 
 The provision is about retrospectivity. It is a central plank of the Government's proposals that the legislation should apply retrospectively. The Minister has already said that he considers that that has no human rights implications. He also made the point, for which I have some sympathy, that, if evidence subsequently emerges about an offence that a person has committed yet been found not guilty of, that person should have no cause for complaint if that evidence gives rise to a further prosecution. There are two counter-arguments. The first, the widest counter-argument, is that we would be imposing a retrospective criminal sanction, because, one way or another, we would be introducing a judicial procedure by which an acquittal is quashed. We would be destroying something that people would ordinarily be entitled to rely on for their security and peace of mind. As others have said, the certainty would be removed. 
 The second, narrower issue, which worries me a little more in the human rights context, is what happens when somebody shows something to his detriment through performance of an act made in 
 reliance on a past belief in that certainty. The obvious example is writing memoirs in which one indicates that one was fortunate to be acquitted of an offence, because the dreadful truth is that one was in fact guilty of it. One could still be prosecuted for perjury if one had been in the witness box, although not if one had not. 
 Some members of the Committee will say, ''Well, if someone is stupid and arrogant enough to announce publicly that they committed an offence for which they were acquitted, they have only themselves to blame if they are subsequently held to account.'' However, there is a slight problem with that argument. All sorts of people do all sorts of things every day that we consider immoral or horrible. However, such acts are not subject to a criminal sanction unless they are crimes and there is a mechanism by which people can be brought to justice. 
 An example—not the obvious example of something that is immoral but not an offence—is that of somebody making a statement that gives strong grounds for believing that he has committed an offence, but which cannot lead to a trial because the nature of the material is such that it is not admissible as evidence under our current rules. It might be, for instance, a confession statement that is made outside the setting of a police station, as specified under the Police and Criminal Evidence Act 1984. People who read such a statement might be inclined to consider that somebody had committed a serious offence. However, the Crown Prosecution Service might turn round and say, ''Look, we're very sorry, but although everybody may think that this offence has been committed, under the various legal protections that exist for this individual we have to accept that there are no means by which we can bring him to trial.'' 
 We shall be subtly changing that, shall we not? In certain circumstances, statements or actions subsequent to the acquittal that currently enjoy legal protection and do not allow a prosecution to take place, might in future allow a prosecution to take place. I accept that it is difficult to pinpoint precise examples, and such examples might be in quite a restricted category. However, one cannot rule out the possibility that it will not happen. In such circumstances, there might be a valid human rights point. 
 Suppose for a moment that the Committee were legislating retrospectively that the 1984 Act should be abandoned, and that verbals should admissible at a criminal trial. That is the best analogy that I can think of. Someone in a police car who has a conversation with the police officer on the way to the police station in the belief that the conversation is not part of the formal investigation process and cannot be used against him in court will find that the conversation is so used, because Parliament has decided not only to change the rule but to say that it is changed for as far back as 10, 15, 20, 25, or even 30 years. I think that a human rights application would be made—and I think that it would succeed. I therefore wonder, taking that as an example, why the subsequent publication of memoirs should be any different. I would be interested to hear the Minister's views.

Lady Hermon: The hon. Gentleman is absolutely right that there is a human rights dimension. He uses the words in article 6 of the European convention, now part of our domestic law, that
''everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal''.

Dominic Grieve: The hon. Lady raises a further point about the time limit, and the reasonableness of timing and procedure. I intended to deal with that later in our proceedings, but she makes a good point.
 I am making a slightly different point. I was questioning the principle of retrospectivity in a rather narrower sense, it being contrary to our legal principles and practices to make crimes retrospective—apart from war crimes legislation. I was not in the House when that went through, but I would not have voted for it, for that very reason.

Humfrey Malins: I voted against it.

Dominic Grieve: My hon. Friend says that he voted against it. I thought then that it was quite wrong, whatever good reasons were given for it. On the whole, retrospective legislation is something that Parliament should not do. The Bill comes into that category, because, for the reasons that I have just described, it has the potential to give rise to human rights issues. If we were retrospectively to change the PACE rules, prosecutions could be brought against people because evidence had become admissible that was not previously allowed. However, I believe that such prosecutions would not pass the courts. I would be interested to hear the Minister's view.

Simon Hughes: I indicated earlier that, after careful deliberation, my colleagues at last year's conference came to the view that the disadvantages in retrospectivity outweighed the advantages. I understand the practical objection to legislating only prospectively. The change in the law would not happen for some time; it would happen slowly and periodically, and only future trials that led to acquittals could lead to retrials. Such a provision would not have an immediate impact.
 I also understand the other practical argument, which is that the cases that are most likely to be considered for retrial by the prosecution authorities are those in which scientific evidence that did not exist at the time of the original trial becomes available; the most obvious example of that is DNA. That change is so significant that changing the law would allow that category of evidence to be used in relation to the trials of all those still alive who had been acquitted of such offences in the light of the scientific evidence then available. We may never again see such a big change, so it is unlikely that another significantly big group of cases could fall to be opened for retrial for the same sort of reason. 
 I understand the two practical reasons, but it strikes me that counter- arguments can still be made. It is of course technically the case—and more than technically—that the change does not create an offence of something that was not an offence at the time of trial. I am not arguing that case; I am not seeking to misrepresent that position. If the offence existed at the time of trial, it is still an offence, and it is 
 therefore a question of whether evidence was available then or later. 
 A matter of principle arises, which troubles others besides me and my colleagues. It is probably best expressed by the Law Society in its submission to Ministers and the Committee: 
''The Law Society considers that any proposed exception to the double jeopardy rule should be tightly defined and should not have retrospective effect considering the fundamental nature of the change. The need for certainty of the criminal law and process is crucial in order to preserve the integrity and public confidence in the system. Defendants should only be exposed to the criminal law and process that operated at the time of acquittal.''
 There is no proposal to change the criminal law—to make something criminal that was not, which would clearly be outwith the European convention. None the less, a fundamental change of process is envisaged. 
 I can think of many cases in which the very fact that present and past law has not allowed a second trial would affect the conduct of the process. The hon. Member for Beaconsfield and I have both mentioned the obvious example, in which someone does not give evidence in the initial trial. Under the trial rules until now, the knowledge that there could be no retrial was quite properly—it had to be—a factor in the mind of defendants, whether innocent or guilty, and their advisors. One might well have pleaded not guilty and said nothing. Indeed, in some cases one would plead guilty and, by definition, say nothing except in mitigation. 
 There are important cases, however, entailing the defendant pleading not guilty and saying nothing, leading to an acquittal. If new evidence arose, while there would of course be the opportunity to put one's case again, the case would be of an entirely different sort, the judgment and decisions of the first occasion having been influenced by the process. What I have outlined means that confidence in the criminal process would be undermined on the second occasion. [Interruption.]

James Cran: Order.

Simon Hughes: The upside is that under the new proposals there would be an opportunity for the Court of Appeal to consider whether there could be a fair trial, a matter that we shall debate in due course. Arguments about media coverage would be part of that issue. In my judgment, honest assessment of cases would find that the only ones for which a fair trial would be likely in round two would be those that had received no significant media coverage in round one.
 All big, significant cases would be likely to fall foul of the fair trial consideration. A two-tier justice system would emerge on round two. Famous cases, or cases affecting famous people, would never be retried, but retrial would be much more likely for Joe Public, whom no one had heard of and whose case was for some reason not regarded as important. The wider the range of relevant offences, the more likely that would be; a wounding offence would be in that category. So Joe Public might have a double disadvantage. First, he might have made a judgment, as he was perfectly entitled to do, that he should not give evidence in the 
 first trial, on the basis that there could be no retrial. Secondly, it seems he might be in the very category of person liable to be retried.

Paul Stinchcombe: I just do not understand the hon. Gentleman's argument. He is concerned about a person who has made a decision about whether to give evidence. However, whatever decision that person made, it resulted in acquittal, so making that choice cannot conceivably have put him in a worse position.

Simon Hughes: It may indeed have put him in a worse position—[Interruption.] If the hon. Gentleman will bear with me, I will explain. There are many acquittals, but, as the hon. Member for Beaconsfield quite reasonably said, the press may report that one in particular is unfair. People who do not give evidence may be acquitted, but the press these days will frequently say that the trial was unfair and that the defendant should have been convicted. They will keep running stories saying that he is guilty, and they will not stop just because the trial court decides that he is not—that is not the way that they work.

Paul Stinchcombe: I simply do not understand the hon. Gentleman's point. The person will have been acquitted, and his position will be no different from that of anyone else who has been acquitted. If he does not give evidence, however, that will simply mean that the Crown could not prove its case without challenging him in the witness box. Why should the prosecution not be allowed to bring a case in the public interest if compelling new DNA evidence arises 10 or 15 years later to support it?

Simon Hughes: We are arguing about whether one should be allowed to use more evidence later; that is the main debate. However, saying nothing allows inferences to be drawn throughout the criminal process these days in ways that it did not before. The hon. Gentleman must know well that the media do not give up just because someone is acquitted, and the Stephen Lawrence case is an obvious example—let us be blunt about that. There were acquittals, but that has not prevented the press from regularly arguing that the men involved are guilty. I do not know whether they are, but that is what the press keep arguing.
 In the past, the prejudice that defendants who were acquitted might have suffered had they not put their side of the story—it might have helped clear their name—was dealt with on the basis that there would be no further trial. Had they known that there might be, however, they might have put their case in full. Whatever the disadvantages, they might have decided that there would also be advantages. There is potentially considerable prejudice to people who do not put their case in round one, but who might be retried in the future.

Dominic Grieve: I, too, have been having some difficulty following the hon. Gentleman's argument, which seems to apply more to whether a retrial would be fair given the length of time since the original proceedings. However, he also flagged up a matter that I found significant, although I do not know whether we agree on it. Someone may have taken advantage of the old rules of court by choosing not to
 answer questions at interview or to give evidence in court, and that could not have been used to his prejudice at the first trial. Twenty years on, however, he may be retried, and he could be substantially disadvantaged. He will be unable to refer back to what he would have said had he felt compelled to speak by the detriment clauses that apply today. Retrospectivity could greatly damage his case because the trials will take place under completely different sets of rules.

Simon Hughes: That is a perfectly reasonable additional point, although the hon. Member for Nottingham, North will regard it as an entirely legal one.

Graham Allen: As the hon. Gentleman mentioned me, will he give way?

Simon Hughes: I will of course give way. The hon. Gentleman and I sometimes disagree because he seems to forget that many of his constituents end up being wrongly prosecuted, just as many of mine do. I hope that he is felt to be representing them as well as everyone else.

Graham Allen: They are not the ones who worry me.

Simon Hughes: If they do not worry the hon. Gentleman, I am sorry for them. It seems to be a disadvantage to have a Member of Parliament who is not concerned about people who are wrongly prosecuted.

James Clappison: The hon. Gentleman is advancing what are no doubt important arguments, though they are slightly complicated, as I think he would agree. Will he turn his mind to the victim's family, and how they might feel if, for example, compelling and conclusive scientific evidence comes up to prove the guilt of somebody who has been acquitted, yet, under what he would have, the person concerned cannot be put on trial again because there is a cut-off point that seems arbitrary to the family?

Simon Hughes: That is a perfectly proper point that we need to take into account. The case depends on whether the hon. Gentleman believes, for example, that DNA evidence is always conclusive—we shall come to debates about scientific evidence. Personally, I remain to be persuaded of that. However, there are of course considerations for the victims. Victims and their families will always be aggrieved, which can happen for many reasons. For example, people might not ever be caught or convicted.
 People not being caught in the first place is a much more serious issue, and many more are aggrieved by that. If the criminal justice system wanted to pull its socks up, it would catch more people. Many more people get off through not being caught than through getting off at a trial. I think that the hon. Gentleman knows the figures. On the last occasion on which I checked, of those appearing in the magistrates court, 90 per cent. plead guilty, and a significant proportion of the others are found guilty. Of those appearing in the higher courts, something like over a third are convicted after a trial in which they plead not guilty, and a significant number plead guilty in the higher courts. The matter is relative.

Graham Allen: It is not a matter of ''either, or''. Of course people wish to get those who have perpetrated crime in front of the courts just as much as they wish to secure a conviction of the guilty. Saying anything else would be to misrepresent the Government's position.
 I invite the hon. Gentleman to join us in the real world. I raised the case earlier, which many members of the Committee referred to, of the child sex killer who got away with it on the first instance, did not take the stand, could not be done for perjury, wrote memoirs about the crimes and was able to escape proper and due punishment. As the hon. Member for Hertsmere (Mr. Clappison) points out, that is a double hit. It not only hits the victim who was murdered and abused in the first instance, but is a constant reminder to the family that that person got away with the crime and is making money out of it. That case is real. I hope that the hon. Member for Southwark, North and Bermondsey, in his desire to defend the innocent at all points—I fully sympathise with that—will consider the position of the guilty who abuse the criminal justice system, and why we are here to remove that loophole.

Simon Hughes: I completely understand that point and I am sympathetic to it. However, I add one rider. It is not beyond the realms of possibility—I am sure that it has happened—that people later say that they have done something when they have not. They might even do that with publicity. People in prison often say that they have committed offences when sometimes they have not. People who are mentally ill invent all sorts of things for all sorts of reasons. Every year I receive letters, as I am sure the hon. Gentleman does, from constituents who are clearly disturbed that retail events in their lives that sound entirely fictitious to me. I have had people at my surgeries who are clearly mentally disturbed telling me about events, sexual activities, and so on. I am much more direct now than I was when I was first elected, and I say, ''I don't think you need to come and see me—I think you need to go and see a doctor, because I don't believe what you say.'' I simply point out that one must approach people who pleaded not guilty and later say, ''I did it'' with caution.
 I accept that such examples are probably a minority of the cases that we are discussing. I absolutely do not condone somebody who says, ''Not guilty'', yet later owns up. I also do not condone the fact that from now on those people should be brought before the courts. That is why I do not take an absolutist position on principle. In relation to murder and to the most serious cases, but certainly murder, we should be able in future to retry people. In fact, there is not very much difference between us. I do not want it to be merely a retrospective law. I am happy that for the most serious cases there is a change of law from now on.

Graham Allen: Perhaps we are at cross-purposes. I was debating the clause on cases that may be retried; the hon. Gentleman is debating a clause on finding people automatically guilty. I have obviously missed that page.

Simon Hughes: I do not understand that. Let me make my last two points. The penultimate point is this. If somebody is acquitted and there is a chance that they can be retried, there is a risk of abuse of the criminal justice process, including by the police and the prosecution authorities. The risk is that somebody who has been acquitted on a murder case could be picked up on a case of serious wounding or on a case just below the tariff that would allow a retrial. The police in that area, whether in Cleveland or in the Metropolitan police area, might say ''If you do not plead guilty to this, we are going to do you on that murder case again. We are going to get you. We have not forgotten that you got off when you should not have got off.''
 Let no one tell me that the prosecuting authorities do not sometimes use such carrots and sticks; I would not believe it. Interrogation will often put pressure on people; the comment might be, ''Own up to this, and we will drop that. Own up to this and we will forget that.'' That is how it works. That is the real world that the hon. Gentleman refers to. The police, for all sorts of perfectly good reasons, are not lily-livered, delicately treading, carefully cautious people who do not sometimes try to ensure that they get the result that they think justice deserves. Of course that does not happen in the interview that is recorded by tape recorder and television screen; it happens on the street. It happens in all sorts of places. It can happen indirectly as well as directly. There is a severe risk that if we go down that road people will be pressurised into pleading guilty to crimes to avoid being retried for a charge of which they were acquitted. 
 The police, if they think somebody is guilty—the Stephen Lawrence case, the Damilola Taylor case and many others—are understandably angry. They do not like giving up on such cases, understandably. They are very keen to get somebody back into court, understandably. They have incentives to stretch the limits of what is acceptable.

Paul Stinchcombe: What on earth has that to do with the amendment, which, according to the hon. Gentleman, is about retrospectivity? If his argument is good, and I challenge it, it is just as true for future offences as it is for past offences.

Simon Hughes: That is true. However, it means that in future everybody will know the score, which at present they do not.

John Mann: May I paraphrase what the hon. Gentleman is saying so that I can follow the logic? He is saying that there is a serious risk in many cases of people who are not offenders accepting a possible prison sentence of several years for a serious offence because they fear that they could be retried for another offence that they have also not committed. That is what the hon. Gentleman is saying.

Simon Hughes: It might not be for a long time. There is a serious chance that somebody will be charged and tried for an offence, whatever it may be, that they may not have committed. They think, however, that they will be stitched up. People are stitched up; they have always been. Our criminal
 justice system may be very good, but it is not perfect. It may be one of the best systems in the world or it may not. There have been sufficient miscarriages of justice—the hon. Gentleman must know that as well as I do—when evidence has been contrived, when the police have made claims that have clearly not been true and have invented evidence. We must build in all the precautions that we can. We must minimise the chance of that happening.
 The last point is that the Home Secretary and other Ministers have certified that this legislation complies with the European convention on human rights. It is still mainly in force; only one part has been derogated from and I hope no more will be derogated from. Significant numbers of people think that either article 6 or article 7 might be breached by a provision such as this. I have a neutral view. Others think that that is an issue. I think that we should weigh it in the balance. 
 My judgment is that, although the Select Committee on Home Affairs and others have suggested that it could be retrospective, the proposal would be far more widely acceptable if it were limited to the few most serious offences and not retrospective. My hon. Friend the Member for Somerton and Frome and I will therefore vote in favour of the amendment to register the fact that we believe that that will be a better way forward.

Lady Hermon: May I ask the hon. Gentleman to bear it in mind that before the Court of Appeal gave an order for a retrial, it would have to be convinced that the new evidence was reliable and substantial? I alarmed at the suggestion of stitching up by police officers.

Simon Hughes: That is certainly true. I understand that entirely. That is why the police would only ever be able to pursue informally, under any other prosecuting authority, a case in which it was said that a prosecution would go ahead unless the accused pleaded guilty to another charge. Because the threshold would be high, the police would know that it would not be worth the effort to reopen the first case. Therefore, it would be a threat that they did not intend to carry out. They would just want to secure a conviction on the second case. The defendant might be the most convenient person to plead guilty to a particular burglary. If everybody knew the score, they would know how high the threshold was.
 I said earlier that this was one of the two issues in this wide debate in relation to which my colleagues around the country found the arguments most closely balanced. It is a matter of judgment. There is not a right and a wrong answer. However, sufficient concerns have been expressed that we should proceed carefully. One way of doing that is only to legislate prospectively, not to open up the opportunity for every acquittal of anybody, still alive, who has been acquitted of any of the 29 offences to become a provisional acquittal from the moment that the Bill becomes law.

Hilary Benn: We have had an interesting and important debate. I shall come to the human rights issues in a moment. However, I should like to address the substance of the hon. Gentleman's points. He
 conjures up the spectre of a situation in which, if retrospectivity is applied, as we propose in the Bill, lots of people wander around, thinking that the authorities will come after them again. The only people who have any justification for that fear are those who were acquitted notwithstanding the fact that they did do it. That reflects the point I made earlier. Where is the new and compelling evidence to come from, which the court would have to consider? I do not accept that everyone who has been acquitted of any of the offences that are in schedule 4 will be wandering around in constant fear of being brought back to court. The only people who have anything to fear are those who did it and in whose cases new and compelling evidence becomes available subsequent to their original acquittal, which would allow the case to be considered.
 The hon. Gentleman raised the question of public confidence in quoting from, I think, the Law Society. I find it hard to see how public confidence will be damaged by retrospectivity, but I can see how, as in the case alluded to by my hon. Friend the Member for Nottingham, North, it can be enhanced by the provision. If we are to debate whether, on balance, retrospectivity enhances public confidence in the criminal justice system or damages it, the overwhelming evidence of the argument that we heard from others is that it enhances public confidence. 
 I therefore do not accept the point made by the hon. Member for Southwark, North and Bermondsey, although I acknowledge that he tried to ensure that we gave full consideration to the pros and cons of the argument. Like other hon. Members, I tried hard to follow his argument about the damage that could be done to the defendant's interests—he gave an example of a defendant who had chosen not to take the stand—but the point was comprehensively responded to in interventions from my hon. Friend the Member for Wellingborough. 
 At one point, the hon. Member for Southwark, North and Bermondsey asked why we should worry about retrospectivity, and said that we should catch more people. The whole point of the clause is to catch those who did it and who got away with it. I see no contradiction between the two. 
 The hon. Gentleman expressed concern about police officers subsequently trying to use the provision as a point of pressure, but that point was answered in an intervention from the hon. Member for North Down. The hon. Gentleman was right to say miscarriages of justice do occur—we know that—and it is right that we should be deeply concerned about it. However, we have to acknowledge and recognise the fact that people committing crimes and getting away with it is a miscarriage of justice.

Lady Hermon: The Minister referred, but not by name, to the hon. Member for Nottingham, North, who mentioned what is nowadays a sensational type of case—a child molester who gets away with it, is acquitted but, in later years, writes to admit his guilt. Given that a fairness test is written into clause 66, will the Minister say whether he believes that the provisions could be used to address such a case?

Hilary Benn: The straight answer is that, first, it will be a matter for the Director of Public Prosecutions in exercising his or her functions in relation to the Act, as the Bill will become. Secondly, it will be for the Court of Appeal to determine the application. In that sense, I cannot answer the question. However, the provisions would at least permit the issue to be aired. The clause would then kick in, and it would be for others, in the light of the legislation that eventually emerges from Parliament, to consider that precise point.
 We shall return to the question of the prospect of a fair trial. It is specifically acknowledged in clause 66(2) that consideration will be given to 
''whether it is likely that a fair trial pursuant to the order would be possible''.
 In response to the point that the hon. Lady has rightly and repeatedly made to the Committee, that is the key test. 
 On the question of retrospectivity and the other points raised by the hon. Member for Beaconsfield and others, it may help if I remind the Committee that the Home Affairs Committee and the Law Commission backed the idea of retrospection. The Law Commission said: 
''We consider that the arguments in favour of giving the exception retrospective effect are powerful. Substantive retrospective criminal legislation renders an act, which was legal when it was performed, subsequently illegal. In the case of the procedural change we propose, the alleged act was already a crime.''
 That point was acknowledged by the hon. Member for Southwark, North and Bermondsey. The commission continued: 
''The new procedure merely makes it possible (or easier) to bring the offender to justice, a desirable outcome whenever achieved.''
 The Home Affairs Committee was concerned that, without retrospection, the change would take years to have an impact and that would create a sense of frustration about past cases. 
 As for article 7 of the European convention, the Law Commission considered and rejected the argument that given the exception retrospective effect would be contrary to article 7. It said: 
''The requirements of article 7 are, in our view, satisfied if the conduct in question constituted a crime at the time when the offence was committed. It is immaterial that the procedural rules in existence at the time of an acquittal or conviction prevented it from being reopened.''
 The Law Commission considered that question specifically. It continued: 
''Article 7 would not prevent the reopening of such an acquittal or conviction under provisions subsequently coming into force.''
 For all those reasons, the case for retrospective application of those provisions is strong.

Dominic Grieve: I am grateful to the Minister for the time that he has taken over the issues that have been raised. I did not always find the arguments put forward by the hon. Member for Southwark, North and Bermondsey easy to follow. As he may have appreciated, I put my anxieties on a rather narrower basis.
 However, I must say to the Minister that those anxieties remain. First, acts that may have been detrimental—however much people say, ''Well, you've landed yourself in it by making a confession''—raise human rights issues. Perhaps, curiously, I do not worry so much about that. However, the second issue that emerged, on which the hon. Member for Southwark, North and Bermondsey touched, hit me forcefully. According to the principles of retrospectivity, cases will be retried that originated at a time when procedures were entirely different from what they are today. 
 Offences investigated before 1986, when the Police and Criminal Evidence Act 1984 came into operation, and before the time when a judge could direct the jury that inferences could be drawn from silence, will give rise to some very particular problems. A decision by a defendant then to answer none of the police officer's questions and to give no evidence in the witness box at trial would, 15 or 20 years later, give rise to severe issues of fairness. Although the police may re-interview a defendant in a second investigation, he can legitimately claim that the time when he was best placed to give answers—and would have given answers—was 20 years earlier. Then he had relied—properly—on a right to silence that he no longer enjoys. Moreover, he could have relied on what he might have said in the witness box but chose not to, because of the state of procedural law and rules at that time. That will give rise to serious problems in holding trials at all. 
 I acknowledge that ultimately, as well as the principle of retrospectivity, this raises the question of whether a further fair trial is possible. Even if we were to make the principle operate in future, I cannot guarantee that the rules in court will not change in 10 years' time. Exactly the same problem will arise then, with courts looking back to what happens now. 
 Leaving aside the question of whether we are looking at retrospectivity, and the other clauses that we must consider, especially that one that deals with the circumstances in which a retrial may proceed, I keep finding examples that make me believe that these retrials, which the public are waiting for, are never going to happen. The procedural problems in ensuring fairness may often be insurmountable. That is a matter that we shall have to consider properly a bit later. As far as retrospectivity is concerned, I am mindful of what both the Law Commission and the Select Committee have said. Heaven knows, as matters stand, all that is exciting members of the public is the prospect of retrospective retrials. It is inevitable that the public look to Parliament to deal with acquittals that took place five, 10, 15, 20 or 25 years ago, which they consider should now be called into question. They are not concerned about the future; those offences have not yet been tried a first time. 
 I accept what the Minister said about procedural rather than substantive law, and for that reason I think that, if the safeguards are right as to fairness, the issue of retrospective action is surmountable. Therefore, I do not intend to press the amendment to the vote.

Lady Hermon: Before the hon. Gentleman makes up his mind, would he comment on one point? I was sorry that the Law Commission did not extend its contemplation of the human rights legislation to article 6. Although article 7 is not being breached, because a criminal offence is not being made of something that was not criminal in the past, article 6 states:
''Everyone charged with a criminal offence shall be presumed innocent until proved guilty''.
 There are no ifs or buts. That is a clear, guaranteed right.

Dominic Grieve: I understand the hon. Lady's point, but my feeling is that that argument—and I should be willing to listen to her say more about it—will apply later in our deliberations. I have tried to avoid too much discussion of the issue of the generality of retrial. An enormous question arises about whether it will be possible to hold a retrial at all, because of the extent to which the presumption of innocence will have been damaged by circumstances. That is another reason why I expect retrials to happen far less frequently than some people hope. To my mind, the point will arise to be dealt with later on.
 About the principle of the matter, the Minister says that new offences are not being created retrospectively, but that a procedural change is being made and, as a matter of principle, the Law Commission's view can be properly accepted. That is a powerful and persuasive argument. The Select Committee's argument that the issue excites members of the public, and that that justifies establishing a retrospective provision, is much less compelling. If the Committee accepted all the public's arguments about what should be included in the criminal justice system, we should undoubtedly decide in favour of a return to capital punishment and all sorts of other measures that the House is not minded to accept.

Hilary Benn: Rightly so.

Dominic Grieve: I note what the Minister says.

David Heath: I think that everyone accepts that the issue of retrospective effect is a matter of the balance of judgment. Does the hon. Gentleman agree that that balance of judgment is affected by the width of the areas of evidence that can be adduced, so that the narrower they are, the more likelihood there is of a reasonable result? Does he also agree that the range of offences that can be retried is relevant? By widening the scope of the evidence that can be used, and the range of offences that can be retried, the Minister has tipped the balance on the question of retrospective effect.

Dominic Grieve: I appreciate that argument. We have, in a curious way, reached the point at which we shall go round in circles. For example, there is a suggestion that new evidence should be restricted to DNA evidence. However, having decided on that, should we take the view that the person in question should still have an opportunity to answer the new assertions in a police interview, or should the authorities go straight into the retrial on the basis of the previous evidence, including such answers as the defendant
 might have given 20 years before, with the addition of the DNA evidence?
 That brings me back to my point about the fact that procedural changes that will have taken place will have an enormous bearing on the potential fairness of the trial. That is why those who try to implement the measure will find it extremely difficult. I can envisage that applications to the Court of Appeal for leave to bring a retrial will be complex, and will involve numerous submissions. The number of really old matters that will get through that scrutiny process—I do not mean those that took place six months ago—will be minuscule. I can see every possible legitimate hurdle and handicap to embarking on the process. The hon. Member for Somerton and Frome is right, but at the same time—although we cannot say it is so difficult that there should be no retrial process, and we should just retain the double jeopardy rule—if we break the process down into compartments, which I have accepted that we must do in this Committee, we must take one compartment at a time. I am not prepared to vote against the principle of retrospectivity, but I will not withdraw the amendment, because I wish to give other Committee members the opportunity to express their views. 
 The debate has highlighted for me how enormously complex the issue will be in practice. Retrospectivity, when one starts to apply it to offences that were committed under different procedural rules of investigation, is likely to present insurmountable obstacles to fairness and could, in practice, result in there being no trials at all.

Simon Hughes: I appreciate that the balance of view on the Committee means that we are unlikely to proceed with the amendment. Some of the arguments that I have put, others have shared; some have been from personal experience. The Minister put a well understood point, frequently voiced, not least by the Prime Minister, that it is a miscarriage of justice when guilty people go free. I understand that. However, life is more complicated, in the sense that many miscarriages of justice are brought about by professionals not doing their jobs properly. Just as we have brilliant hospitals and less good hospitals, operations that work and operations that do not, good teachers and poor teachers, so we have good police officers and less good police officers, and good investigations and less good investigations. One of the things that occasionally produces injustice is a poor investigation. Many people can be victims: witnesses can be victims, the defendant, who is then charged, can be a victim, and the people who were the victims of the crime can be the victims. There is a set of miscarriages of justice that can happen; it all depends how the process works.
 Secondly, the Minister made the point that if somebody were acquitted once and there was the prospect of a retrial, the only people who would be worried about provisional acquittal—the fact there was no longer certainty, and no finality—would be those who were guilty. I do not accept that philosophically or practically. It is very unlikely that an innocent person, acquitted, would be the subject of a second trial—at which he would again, one hopes, be 
 acquitted. However, by definition, it cannot be impossible. However strong the evidence might have to be—I entirely accept that it would have to be very strong to pass the threshold, because I also share the view that few cases will get through the system—the innocent person might not know that. For the rest of his life, not having read the legislation, he will not realise how easy or difficult a retrial might be. All that he will know, if the Bill becomes law, will be that in England and Wales, in the case of any of the offences listed, where there has been an acquittal there could also be a retrial. The problem is that lack of finality, irrespective of the reality. 
 My third point is that the Minister said that this was all about ensuring that people who had committed offences were caught. If he came to me with his colleague the Minister for Criminal Justice, Sentencing and Law Reform and said, ''The criminal justice system is up to date, we have cleared our backlog, all the cases in the in tray are dealt with, we have caught all the people who were doing nasty things, so we have plenty of time. We shall now go back and deal with all the old cases that have been through the system once''—

James Clappison: That is nonsense.

Simon Hughes: No, it is not nonsense. What do we want the criminal justice system to do in practice? Do we want it to concentrate on deterring and preventing crime and catching people who might commit offences in future, or do we want lots of people reopening cases that have already been through the system? With a limited number of people, we cannot do both. The people who are unable to do their current jobs adequately will be asked to go over old cases as well. Alternatively, we shall spend public money hiring further people: more lawyers, more Crown Prosecution Service employees, more people in the office of the Director of Public Prosecutions, more police, and more civilians working for the police. It will be similar to social services departments having to go back over many old child abuse allegations. I do not know about that matter in detail, but many colleagues on both sides argue that the enthusiasm for going back over old ground has been exaggerated.
 The danger in saying that the law will be retrospective is that the public will think that cases that they are concerned about will be reviewed and might result in convictions when they had previously resulted in acquittals. A minimal number of cases is likely to get through the system. We must all have encountered in our surgeries people who are not happy as the result of a social security appeal, an immigration appeal or a housing decision. They keep coming back, and they are never satisfied that justice has been done. 
 If Parliament says that the law has been changed, and that old cases can be reopened, that will raise expectations. It has already done so in some highly unlikely cases. The Commissioner of Police of the 
 Metropolis, for whom I have great respect, is on record as saying that if the law is passed, he expects retrials in the Stephen Lawrence and Damilola Taylor cases. It is highly unlikely that that would happen, and to make the public think that it is likely raises unrealistic expectations. The criminal justice system will be damaged if expectations are raised and cannot be fulfilled.

Hilary Benn: Is it worse to decide whether a trial can proceed by applying a test or to retain the current position in which there is no hope of that because even if compelling evidence subsequently comes to light, there is no prospect of bringing a person to retrial?

Simon Hughes: That is a perfectly proper question. On balance, I accept that it may be better to give people hope that something might be put right. However, I fear that a lot of people will think that it will be possible to reopen and retry any case in which they have an interest. For reasons that we shall discover in a minute, the number that actually goes down that route is likely to be very small.

Vera Baird: In a matter in which I am concerned—Julie Hogg was murdered by a man who has confessed that he did it—the chief constable has assured her mother and me that he will reopen and review the case. On the face of it—I have not studied the case as fully as a barrister would if she had the brief—it looks like a powerful case. What will the hon. Gentleman say to that lady if the law is not made retrospective?

Simon Hughes: I am aware of the case, although I have not examined the details. The chief constable may have been unwise to say that when, since the law has not been passed by Parliament, he cannot guarantee it. If he gave an unqualified assurance, it was a foolish thing to do. If he qualified the assurance—to the effect that reopening the case might be possible if Parliament changed the law—and if he has talked with the family about all the hurdles that would have to be overcome and has taken legal advice and seen the draft Bill, it is fine if he takes the view that the case will be able to succeed. But it seems to me that the hon. and learned Lady has made exactly my point: people's expectations are being raised, but those whose expectations will be fulfilled are likely to be far fewer than those whose expectations are being raised.

Vera Baird: The hon. Gentleman has said that it will be fine if the review has been promised on the conditional basis that the Bill will pass, which the chief constable must obviously have done, and if the chief constable finds the case a viable one. However, the hon. Gentleman is pursuing an amendment that would prevent that from happening, because the case to which I referred, like all cases in question at present, is retrospective. What would he say to my constituent about that?

Simon Hughes: I would say to the hon. and learned Lady's constituent what I have said to the family of Stephen Lawrence and others. I do not think it right to change the law retrospectively. That is a straightforward argument, and I am not afraid to make it and have done so before in public. On
 balance, that would be the best way to proceed, and I would then elaborate on the argument. It is not as if I have not done that in public in a high-profile case before. I can only be honest with the hon. and learned Lady.
 I accept that this is a matter of judgment. Not all my colleagues share my view. We are registering our nervousness about the proposal, although I accept that the balance of argument, and the balance of view in the country and among those who have considered the issue, is in favour of making the law retrospective. It will be interesting to see how many cases are affected by the proposal if it becomes law.

Humfrey Malins: Much of what we are talking about has to do with the nuts and bolts that will be resolved in due course by a combination of the Director of Public Prosecutions and the Court of Appeal on the basis of the criteria before them at the time. I do not have a big problem with that.
 I have a degree of sympathy with the argument in favour of retrospection. We are talking about today's science and the position of 10, 15 or 20 years ago. It appears, given the changes that have taken place and public demand, that there should be retrospection. I mentioned the Tutill case this morning, which oddly enough was not a double jeopardy case, but there is also the Hanratty case. 
 There is room for individual views on this matter. I feel that there is a certain sense of justice in making the law retrospective, but that is about as far as I want to go. The problem with not making it retrospective would be that we would have the new law from today onwards only, and that although the science is sufficiently advanced, one would be unable to attack the mischief that the changes are designed to attack. I see the strength of that argument, although, as is usual with me, I see both sides.

Vera Baird: May I make an apology? I described as my constituent the mother of the dead woman in the case to which I referred. That was a slip of the tongue: she is in fact a constituent of my hon. Friend the Member for Stockton, North (Mr. Cook), who has fought doughtily on her behalf.
 Question put, That the amendment be made:—
The Committee divided: Ayes 2, Noes 12.

Question accordingly negatived. 
 Amendment proposed: No. 330, in 
clause 62, page 39, line 8, leave out
'an offence listed in Schedule 4'
and insert 'murder or genocide'.—[Simon Hughes.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 2, Noes 12.

Question accordingly negatived. 
 Question proposed, That the clause stand part of the Bill.

John Heppell: On a point of order, Mr. Cran. I am sure that all hon. Members are grateful for your tolerance in allowing the debate to develop on such an important subject. However, our discussions have covered most, if not all, the points that can be raised about clause 62, schedule 4 and many clauses in part 10. Might you consider whether it is necessary to have a debate on clause stand part?

James Cran: If I had judged that there should not be a debate, I would have exercised the powers available to me. The fact that I did not do so signals that there will be what I hope is a short debate.

Simon Hughes: I reassure the Labour Whip that I want to ask only one question, which relates directly to the question asked by the hon. and learned Member for Redcar in the previous debate. Did the Government consider the cases in which there had been an omission and, if so, with what consequence? It strikes me that there would be a much greater willingness to retry cases of the sort that we debated in relation to schedule 4, in which prima facie evidence would fall to be reconsidered because of an omission. I do not share the view expressed by the hon. Member for Beaconsfield that someone writing memoirs makes matters any more or less justifiable.
 A related question that has not yet been raised, which I hope the hon. Member for Nottingham, East (Mr. Heppell) will accept, is why the Government did not consider an absolute time limit question. In fairness, I am aware that the delay is a factor in a later clause. If the Government did consider such a time limit, why did they reject it?

David Cameron: We have been debating all day, so I shall be brief. We have heard from the professionals and the experts, so the amateurs should be allowed a brief go, especially as some hon. Members have been waiting to make a few remarks during clause stand part debates. It is not our fault if Front Benchers sometimes stray into more general territory by raising issues that one might want to raise. I mean that in the kindest way, but it applies throughout.
 I sat on the Home Affairs Committee and was not especially convinced by the need for a change, but I have gone on listening. However, I am increasingly unconvinced about the need for such a large change for so many offences. Powerful and emotional arguments are made, and as soon as one says that 
 one is against changing double jeopardy, up pops someone to ask about the killer in one's constituency who murders children, is acquitted, then admits that he was guilty. That is an incredibly powerful argument. 
 At the start of the debate, the Minister rightly said that a principle was at stake. We must ask why that principle has been in law. That goes to the heart of the relationship between the citizen and the state, which is why there are double jeopardy restrictions in so many jurisdictions around the world. Once the full force of the law, the prosecution and the police—the state, as it were—has been exercised and there has been a trial, the defendant who has been acquitted should not have to face being continually pursued. I find it difficult to understand—the hon. Member for North Down has made the point repeatedly—how it would be possible to secure a fair trial after that had happened. 
 I heard what the Minister said about safeguards, but, in a sense, the greater the safeguards, the more difficult it will be to obtain a fair trial afterwards. The jury will sit in court thinking that the retrial has been sanctioned by the Director of Public Prosecutions and the case has been through the Court of Appeal, so a guilty verdict would seem right. Even more safeguards could be added—a papal bull or the permission of the Archbishop of Canterbury—but they are likely to make the jury believe even more strongly that the guy is guilty. 
 The Minister also said that we should not afford protection to the guilty, but that could be said—and is said in The Daily Mail nearly every day of the week—about virtually everything in the criminal justice system. The argument is that no one wants to protect the guilty, but everyone has a right to a fair trial. We are trying to protect the innocent. That principle should be overturned only on compelling evidence, but I am not sure that we have heard it. We must keep the pressure on the police and the prosecution to get it right the first time. 
 Why are these measures being taken? The answer is that in some high-profile cases, the police—and sometimes the Crown Prosecution Service—failed to do their job properly. Double jeopardy is not the main weakness of the criminal justice system. Not enough crime is being detected; not enough criminals are being caught and charged; not enough cases are going ahead to the courts; too few cases are properly prepared. For the Government, the 29 offences on the list seem to be a big solution to a huge problem, but that is not the right way to view it. I hope that we shall have a further opportunity to narrow down the number of offences on Report. That would send the message that it is vital to concentrate on what is wrong with the criminal justice system rather than undermine principles and liberties that have existed in our system for such a long time. 
 Finally, I take the point about DNA and murder. DNA is a new phenomenon and we must test our belief in it. It is as close as it is possible to get to 
 incontrovertible truth. However, sometimes it emerges later in a case. As the hon. Member for Southwark, North and Bermondsey said, the class of cases in which it is likely to emerge later is time limited, because the DNA database is becoming more efficient and sophisticated. In exceptional cases in which DNA is a factor, I can see the argument for breaching the double jeopardy protection principle. Elsewhere, certainly for the 29 offences, we should think very carefully before removing from our criminal justice system a safeguard—and a great principle of liberty—that has existed for so long and for such good reason.

Hilary Benn: I shall be brief. Picking up on the final point made by the hon. Member for Witney (Mr. Cameron), no one who listened to our debate—and, in due course, read our deliberations in Hansard—could say that we failed to give very careful consideration to the broad principles as well as the specifics of clause 62, which trigger the whole process. You were rightly generous in allowing such a broad debate, Mr. Cran.
 The hon. Member for Southwark, North and Bermondsey asked about the considerations to which the Government had regard. We weighed most carefully the views of the Law Commission, the Select Committee on Home Affairs and Sir Robin Auld, and—in respect of making the change—those of almost all members of the Committee. On the time limit, the hon. Gentleman effectively answered his own question. Yes, the Government believe that to be a relevant consideration that should be taken into account—alongside other factors—by those taking decisions on a retrial. 
 The hon. Member for Witney asked whether the provision would present huge problems. It is difficult to estimate the figures: it all depends on the number of cases in which ''new and compelling'' evidence comes to light. In all honesty, what makes it a huge problem is the injustice that people feel when such evidence comes to light and the system works to prevent it from being tested before a jury in a court of law. At the end of the day, hon. Members should not forget that, in this operation as in all other circumstances, we have to trust the jury to reach a verdict on the basis of the evidence if a retrial is ordered. For all of those reasons, I believe that the clause should indeed stand part of the Bill. 
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 12, Noes 1.

Question accordingly agreed to. 
 Clause 36 ordered to stand part of the Bill.

Schedule 4 - Qualifying offences for purposes of part 10

Question proposed, That this schedule be the fourth schedule to the Bill.

Dominic Grieve: Very briefly, for reasons that I think were made obvious in the earlier debate, we reserve our position on the schedule. We would like to see what the Minister can provide us with. It may well be that, on Report, the key amendment will aim to restrict the number of offences on which retrial can take place.

Simon Hughes: I have indicated our view. If there is a vote, we shall oppose the schedule because we have a clear view that it ought to be limited to the offences that the Law Commission recommended and not apply more widely.
 The Minister earlier gave as an example the number of acquittals and convictions on the wounding offence. As I recollect, there were 2,000 or so convictions in a total of more than 3,000 cases; therefore, basing my calculation on the figures supplied by the Minister, there were more than 1,000 acquittals—in one year, I believe. My understanding is that if we extend the offences as proposed, from the two or three suggested by the Law Commission to the 29 now suggested by the Government, and taking only the offence for which there is the largest number of trials—although there will be a large number for aggravated robbery—we are looking at thousands of offences and thousands of acquittals a year. The Government's proposals seem to me to have changed the case entirely so that the provision will not be exclusive, but will apply in general circumstances. 
 Can the Minister confirm that he will at some stage put in the Library, or on the record in another way, the best existing evidence for the number of trials, convictions and acquittals that have taken place on those 29 offences during a reasonable recent period? I apologise to him if he has already done that.

Stephen Hesford: I want to understand the hon. Gentleman's argument. I think that the Committee as a whole has accepted that in cases involving DNA, there is a real argument for re-examining murder and other offences. Even the hon. Gentleman accepts that. Say that, in future, DNA evidence comes to light in a case of really brutal gang rape. Is it his position that such an offence should not be included in the schedule?

Simon Hughes: I am personally very sympathetic towards including rape. I am on the record as saying that, for example in the earlier Westminster Hall debate. Others take the view that we should limit the offences to those that the Law Commission has recommended, but I do not feel bound to hold that view. The other categories that I want to be included are rape and attempted rape offences.
 I am conscious that, in that grouping, four of the 29 offences are sexual offences. The others referred to are intercourse with a girl under 13, and incest with a girl aged under 13. I am sympathetic to including those offences, as well. To be blunt and honest, apart from the general proposition that we should consider all 
 offences for which there is life imprisonment by statute, I have never seen any proposition in favour of the two offences in the list that trouble me: the wounding offence under the Offences against the Person Act 1861; and No. 15 in the list, which covers robbery offences under the Theft Act 1968, and the Firearms Act 1968. The reason that I am most nervous about those is the huge number of such offences that are tried every year.

Lady Hermon: I will deal with the point raised about narrowing the list of offences in schedule 4 and adding gang rape. Something as controversial as gang rape, murder, genocide or any such high-profile case will attract an enormous amount of publicity at the outset. When an application is made to the Court of Appeal, it has to be based on the first criterion in the interests of justice under clause 66, and the court must be persuaded that it is likely that a fair trial will follow. Given that there will be so much publicity at the first trial, how in heaven's name can the hon. Gentleman be convinced that the Court of Appeal will be able to make the clause workable?

Simon Hughes: The hon. Lady knows that that is our greatest concern, and that the Ministers have not answered it, even though they are the people responsible for putting the Bill through Parliament.
 There is a paradox. The cases that one will most want to be retried are the very cases about which there will have been the most publicity beforehand. Because woundings and robberies are less likely to attract media publicity to the same extent, and fewer people will remember the case, it is theoretically more possible to get a fair trial. There will therefore be a twin-track change in the justice system whereby very serious cases cannot be retried, but less serious cases can be. 
 Our party collectively took a majority view—I will read it on the record to be fair to my colleagues—that we should allow the prosecution to appeal against future acquittals in very serious cases where fresh and compelling evidence of guilt emerges that could not have been presented at the original trial. The view was taken of the options in the debate was that the provisions should not be retrospective. The Liberal Democrats did not form a view that limited the number of offences to a particular one or two. They took the view that ''very serious cases'' was an appropriate category.

Vera Baird: To avoid a false impression being generated by the numbers, it is a commonplace in the criminal courts that when people are charged under section 18—wounding with intent, or causing grievous bodily harm with intent—they plead guilty to section 20, which covers ordinary wounding. Many of the acquittals involving section 18 offences would not be candidates for the new provision. Similarly, but not so often, robbery is charged and theft, or theft plus an assault, is accepted as a plea. That would technically be acquittal, but it would not be a candidate for these provisions. To look at the figures and say that we shall be inundated is not so easy. I do not believe that we shall.

Simon Hughes: I understand the hon. Lady's point. A considerable number of wounding cases came my
 way when I practised criminal law. Very frequently, the more serious offence was put on the indictment so that the guilty plea to the less serious offence would be accepted.
 That leads us to the general issue of overt plea bargaining, which goes to the heart of the way in which the Crown Prosecution Service works. My honest view, which has the demerit of simplicity, is that if the CPS believes that a charge merits going to trial because there is a greater than 50 per cent. chance of conviction and it is in the public interest, only in exceptional circumstances should that charge not be the charge that is tried. I would deviate from that procedure only if something came to the attention of the CPS that made the evidence on which it had made its assessment shaky—for example, if somebody who was expected to be available became unavailable, or a person who was expected to come up to proof did not. 
 I have a problem with the arbitrary way in which charges are accepted and pleaded to. More than anything else in the criminal justice system, it depends on the lawyers on both sides and, to a lesser extent, on the judge of the day. It is the most unpredictable bit of the system. Therefore, I absolutely accept what the hon. and learned Lady says about the reasonableness of not regarding numbers as everything. However, I still have a great concern that, by including robbery and wounding, we are including matters that, in the public domain, are not in the category of the most serious offences.

Hilary Benn: I have no doubt that we shall return to the matter when we consider later stages of the Bill. I give the hon. Gentleman an undertaking that I shall provide the information that he has requested on convictions and acquittals, as far as it is available.

Paul Stinchcombe: Might I have some clarification in respect of offences Nos. 9 and 10—intercourse with a girl aged under 13 and incest by a man with a girl aged under 13? What is the technical or political reason for the absence of reference to equivalent offences against boys?

Hilary Benn: That is an absolutely—

Dominic Grieve: Would the Minister like to give way?

Hilary Benn: If the hon. Gentleman is going to make a helpful intervention, I shall be delighted to give way.

Dominic Grieve: First, I do not think that there is an equivalent offence. Secondly, in any event, it is odd that that should be in the Bill, because it is going to be turned over by the sexual offences Bill.

Hilary Benn: That was a most helpful intervention, as I anticipated it would be. The second point is really the answer; the will be subject to further legislation that some of us may spend yet more happy hours considering in another Committee.
 Motion made, and Question put, That this schedule be the Fourth schedule to the Bill:—
The Committee divided: Ayes 12, Noes 3.

Question accordingly agreed to. 
 Schedule 4 agreed to.

James Cran: I now intend to suspend the Committee for 15 minutes so that I can recover, even if nobody else does.
 Sitting suspended. 
 On resuming—

Clause 63 - Application to Court of Appeal

Dominic Grieve: I beg to move amendment No. 303, in
clause 63, page 39, line 12, leave out 'quashing' and insert 'suspending'.
 The clause provides a mechanism by which the application to the Court of Appeal is made. Subsection (1) says: 
''A prosecutor may apply to the Court of Appeal for an order—(a) quashing a person's acquittal in England and Wales, and (b) ordering him to be retried for the qualifying offence.''
 Given the plain meaning of what is intended, that has to be read in conjunction with clause 71, which sets out what happens if a retrial does not take place. Clause 71(2) states that the retrial must take place within two months of the date of the order, and if the person has to be arraigned, leave must be given to arraign him. He may apply to the Court of Appeal to set aside the order and 
''for any direction required for restoring an earlier judgment and verdict of acquittal of the qualifying offence''.
 I do not want to get involved in excessive semantics, but on the whole it is quite clear that it is expected that a person may normally be able to rely on his previous acquittal. If the acquittal is quashed, it is envisaged that the trial will take place and either a verdict of guilty or a fresh acquittal will be recorded. What happens if between the date that the original acquittal is quashed and the expected date of the retrial the defendant drops down dead? There appears to be no mechanism in the Bill to restore the original acquittal, because it says that he has to apply in order to have that set aside. It is a more than esoteric point, because we have had a number of cases recently in which people have gone to the Court of Appeal seeking to have various verdicts changed posthumously. It is a small point, but I should like the Minister to consider it. 
 There is a slightly wider issue, which is perhaps satisfactorily answered, although I am not completely happy about it. It concerns the need to go back to have 
 the original verdict brought back into force. In the absence of a trial within a set period, although we can return to look at clause 71, it is at least arguable that the original acquittal should be suspended only for the purpose of bringing a new trial. If a new trial is not brought, that original acquittal should stand without the person having to do very much at all to have it restored. The point that arose first in my mind when I read the clause was that there was no provision for the circumstances in which the defendant died, having had his earlier acquittal quashed. His relatives would argue that he ought to be entitled to rely on it.

David Heath: I shall be extraordinarily brief. I am persuaded by the power of the argument of the hon. Member for Beaconsfield. It does not seem sensible to use a word that has a clear tone of finality, in the sense of quashing, instead of a word that means suspension, which is the more accurate reflection of what happens, while there is, presumably, still an assumption of innocence. I hope that the Minister will give an affirmative reply to the amendment or suggest an alternative wording that more accurately describes the circumstances of a person who has been acquitted during the period between the implementation of the procedure and any new trial.

Hilary Benn: It may be helpful if I say that we intend all the normal safeguards of criminal procedure to apply in full when a trial is conducted in accordance with the provisions of part 10, including the presumption of innocence as normal. I stress the words ''as normal'', because they mean no more and no less than that. The trials that we are considering are not different or special. They are ordinary trials being conducted as a result of special circumstances, for which the Bill makes provision.
 I understand the hon. Gentleman's point, but it does not sit very easily with what I just said. It suggests some presumption of acquittal over and above the presumption of innocence, and I am not sure what a court would make of that. Clearly, we wish the trial to proceed in the usual way, on the evidence and without prejudice to the ultimate outcome, and that is one reason why the Government favour the formulation in the Bill. 
 However, there is another reason. I was asked whether there was any other provision in legislation for the quashing of an acquittal. The answer is, yes, in section 54(3) of the Criminal Procedure and Investigations Act 1996—I am a bit slower than my hon. and learned Friend the Member for Redcar—which makes provision for the quashing of tainted acquittals.

Dominic Grieve: That is precisely the point. Such quashing would affect tainted acquittals, but in this case the original acquittal on which the person was entitled to rely is not tainted. There is a distinction.

Hilary Benn: I hear the hon. Gentleman's argument, but the Bill provides a mechanism for enabling the subsequent retrial to take place. A means of setting aside the previous acquittal is needed, and it must interrelate with the test that will be applied to decide whether retrial can occur. In due course, we shall turn to the argument about the nature of the test and how
 high the barriers should be set. Different arguments have been advanced by Opposition Members on the question.
 I understand the hon. Gentleman's point, but I am not persuaded that the amendment would provide a better mechanism. There are difficulties with the presumptions that would surround the term ''suspended acquittal'', and for that reason I resist the amendment.

Dominic Grieve: I have listened carefully to the Minister. I do not wish to get too bogged down in what might appear to be an exercise in semantics, but an important point underlies the debate.
 I am satisfied with the principles that the Minister has enunciated. Indeed, it is clear from clause 71 that the original acquittal would be quashed only for the purpose of allowing a further trial to take place. In the event that a further trial does not take place, it does not appear to me to be the legislation's purpose to say that the original acquittal must remain quashed, so the matter is unresolved. Otherwise, clause 71, with its provision allowing someone to apply to have the original acquittal reinstated, would not have been included. There is a big difference between being presumed innocent, having never been tried for an offence, and having conclusively determined innocence as the result of an acquittal. I think that a person is entitled to place reliance on the original acquittal if the matter is not resolved in the later trial. 
 That gives rise to the question whether the word ''quashed'' is right. Will the Minister go away and think about that again? Notwithstanding what he has just said, and although I fully understand the derivation of that word and why it was chosen, I think that we are doing something rather different here from quashing an acquittal on the basis of a trial being a nullity because it was tainted. 
 This may seem a small point, but what happens if a person falls down dead between one trial and the other, leaving any conclusion curiously up in the air? On the face of it, there seems to be no ready mechanism to enable his relatives to have the acquittal restored. We need to deal with that, perhaps calling it suspending, and explain in more precise terms who can apply to have the acquittal restored to the record.

Hilary Benn: I apologise for not addressing that point when I responded. It is a good question and I undertake to act on it.

Dominic Grieve: I am grateful to the Minister. This is not an argument against retrial, but my own experience suggests that trial processes are very stressful. During the course of my career, I am afraid that it has happened that clients whom I was representing were not around to stand trial by the time of their trial date. It is not unusual to have to go to court and tell the judge that the trial cannot proceed because the defendant is dead.
 With the assurance that the Minister has given, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 312, in
clause 63, page 39, line 20, at end insert 'in person'.

James Cran: With this it will be convenient to discuss the following amendments:
 No. 316, in 
clause 72, page 44, line 28, at end insert
'in person and in writing'.
 No. 324, in 
clause 78, page 49, line 8, leave out subsections (2) and (3).

Humfrey Malins: We are now considering the procedural provisions and the prosecutor's ability to apply to the Court of Appeal. Amendments Nos. 316 and 324 are consequential on the lead amendment.
 As I may have mentioned earlier, almost two years ago today, Mr. David Calvert-Smith, as he then was, gave evidence to the Select Committee on Home Affairs. When asked how many cases he thought might result in retrials under the Law Commission's proposals, he said something to the effect that he would be astonished if it was more than a handful. I hope that the Minister will agree with me and hope that the number of cases that will be affected by the new proposals on double jeopardy will be very small in number. I am certain that he will agree that the process that has to be gone through before any such new trial happens is very important and involves significant issues. 
 Given the importance of the decision to allow an application to the Court of Appeal to seek the quashing of an acquittal, it is surely desirable that that decision is taken by the Director of Public Prosecutions in person rather than by someone from his or her department delegated to deal with the matter.

Vera Baird: I do not know whether the hon. Gentleman derives any reassurance from clause 78, which seems to say that the DPP must make the decision and that the usual practice, whereby the Crown prosecutor makes it instead, is specifically excluded.

Humfrey Malins: Clause 78(2) states:
''In the absence of the Director of Public Prosecutions, his functions under those provisions may be exercised by a person authorised by him.''
 I seek to probe the Minister on the issue. I suspect that, like me, others on the Committee want to ensure that the DPP is personally involved in taking what is a very important decision. It is particularly important that he does so in person, given that only one application can be heard in respect of a single case. The imposition of a personal responsibility would also restrict the possibility of information being leaked to the press, which is a major danger in retrials following acquittal. 
 The Minister may be able to reassure me in any event, but our probing amendments would ensure that the DPP was personally responsible for making the decision, signing the documents and implementing the process. He should take personal responsibility, not least because relatively few cases will be involved and they will, by definition, be very important.

David Heath: The amendment must be correct in principle. It must be for the DPP to make a decision in person about an application—it would not be appropriate for it to be devolved to a lower level of responsibility in the office—so we support the amendment.
 On amendments Nos. 316 and 324, I have some sympathy with the view expressed by the hon. and learned Member for Redcar. Clause 78 qualifies clause 72 by stating at least implicitly that the provisions in clause 72 can be implemented only by the DPP or, in his absence, by a person specifically deputised by him. I take some comfort from that, but perhaps the Minister can assist us on clause 63, which is neither explicit nor implicit about the implementation of its provisions. Will he make it clear that the duty in the clause can be exercised only by the DPP or by someone at a very senior level in his department whom he has nominated. The issue is not covered by clause 78, and it would be helpful if the Minister could clarify what he expects the procedure to be.

Hilary Benn: As hon. Members have said, clause 78 already provides for the DPP to give his or her consent in person by disapplying the provisions of the Prosecution of Offences Act 1985 that would normally commit the DPP to delegate decisions to Crown prosecutors. It enables the DPP to nominate a specified person to take decisions on the relevant matters in his or her absence. That is to allow urgent decisions to be made in cases where the DPP is unavailable. He or she could be ill, on leave or absent for other very good reasons. It seems sensible to provide for such an absence by allowing someone who has been so authorised under clause 78 to take decisions. The clause is intended to cover what is likely to be a rare eventuality, and I do not dissent from the argument that has been advanced that we expect the DPP to deal with such matters personally but that it is sensible to make provisions for the tasks that the clauses give to the DPP if he or she is unavailable. One could conceive of such circumstances if the DPP suffered serious illness for some time, so we should not allow the procedures not to work for the want of what clause 78 provides.

Lady Hermon: I want clarification and information. In Northern Ireland, we have our own DPP and a formally appointed deputy DPP, who may make such decisions. Is it not the same in the rest of the United Kingdom?

Hilary Benn: The answer is no.

Lady Hermon: We are obviously more advanced.

Hilary Benn: I am sure that others will reflect on that argument.
 The provisions exist for the reasons that I have outlined, and I hope that I have been able to offer reassurance to those who raised the point.

Humfrey Malins: The Minister has offered reassurance to an extent, and I hope that he means that he does not expect the functions to be exercised by anyone other than the DPP except in rare circumstances. As he would accept, there is a huge difference between the DPP being frightfully busy or spending a week in
 Liverpool and the DPP being on a fortnight's holiday 1,000 miles away. We can all recognise cases in which the provisions could be sensibly used. On the basis that the power will be exercised by the DPP whenever he or she is available, and by a designated person only in unusual circumstances—the Minister is nodding, so I will not ask him to respond again—I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 263, in
clause 63, page 39, line 25, at end add
'and
(c) the defendant will receive a fair trial'.
 The amendment concerns the criteria that the DPP has to consider before deciding whether to proceed with an application to the Court of Appeal. As subsection (4) stands, the director may give his consent only if 
''there is evidence as respects which the requirements of section 65 appear to be met, and . . . it is in the public interest for the application to proceed.''
 We need not consider clause 65 in detail now, but it concerns new and compelling evidence, rather than the interests of justice, which are covered in clause 66. The amendment is designed to introduce a further requirement that the defendant will receive a fair trial. The DPP should consider that requirement before making the application to the Court of Appeal. 
 To return to an earlier debate, one key issue about the fairness of a trail concerns the points that I made to the Minister on clause 62. I asked how the procedures of interview that took place originally with the defendant at the time of his arrest—perhaps 20 years ago, under different procedural rules—would be married with the fairness of a trial that took place today. On one level, that could all be left to the Court of Appeal to decide, but I find it slightly surprising that the DPP should not have to take those matters into account before deciding whether to try to prosecute again. They are so central to the ability to conduct retrials properly that the DPP will have to consider them, if only because he knows very well that they are likely to be the key issues that will feature in the defence at the Court of Appeal and to which he, or the counsel he has instructed, will have to reply. 
 The wording of the clause places quite a narrow test on the Director of Public Prosecutions: the test in subsection (4)(a) and (b). On that basis, the test of the fairness of such a procedure to the defendant, in the light of the circumstances of the case, does not arise. Say I am the DPP and there is a suggestion of a retrial. At some point counsel will be instructed to advise me. Imagine that counsel advises me that there is clearly evidence meeting the requirements of clause 65 and that it is plainly in the public interest to proceed. After all, this is a horrible murder that took place 25 years ago; it has been much commented on in the press and there has been public speculation about it. One has only to consider the procedural aspects of the case to realise that it would be extremely difficult for a fair trial to take place. 
 In those circumstances, the DPP, fulfilling his role as a prosecutor, which I was always taught includes being a minister of justice and not just being an adversarial figure who brings a question for the determination of the court, might be better to have the courage to say, ''We have looked into the matter very carefully, but we have been advised that a fair trial would be impossible. In the circumstances, no application will be made.'' It is worth remembering that the mere procedure of making an application will place a great deal of stress and anxiety on the person who is being targeted. The DPP should be in a position to take a view; it should not be left solely to the court. I would be interested to hear whether the Minister thinks that I am wrong.

Paul Stinchcombe: The hon. Gentleman makes an interesting point, and I look forward to hearing the reply. I had read this very differently. I always assumed that the phraseology of subsection (4)(b)—the words ''public interest'' are used—included the interests of justice, which are public interests, so I assumed that it was broader rather than narrower, allowing not only the interests of justice but other public interests to sway the DPP.

Dominic Grieve: I wait with interest to hear from the Minister on that point. He may be able to persuade me by referring to how the current public interest test operates. The Committee may or may not agree, but, for reasons that I have already given, I think that the ability to have a fair retrial will be central in almost every case. It will be central for reasons that are very different from those that exist in normal trial processes. There may be many cases in which it is perfectly possible to have a fair trial, but there will be a large number of cases in which it is not. Given the centrality of the issue, I wonder whether, in those circumstances, it might not be correct to identify that separately, unless the Minister can persuade me that the public interest test is so great, so wide and all-encompassing, that that is completely unnecessary.

Ian Lucas: Can the hon. Gentleman conceive of circumstances in which the Director of Public Prosecutions would consider it to be in the public interest to proceed with an application if he considered that there could not be a fair trial?

Dominic Grieve: The issue is linked to clause 69. I anticipate the discussion on that clause, which I was pleased to see included in the legislation. Its inclusion appeared to come about after firm representations were made from a number of quarters. However, it did not seem to feature at the time that, along with the hon. Member for Southwark, North and Bermondsey, I went to see the Minister. We made the point to him and the clause was included, at which I was delighted.

Hilary Benn: It made a difference.

Dominic Grieve: I am delighted to hear that. However, I am not sure what happens at the end of the procedure. Let us suppose that the court says that it does not think that the procedure should go ahead. In those circumstances, I assume that permission would be granted to report that an attempt had been made to allow a retrial but that the Court of Appeal had ruled that that was not possible. The public will become
 aware at some point that the procedure has been embarked on, and seeing the extent to which, I am afraid, public pressure—and I do not mean this improperly—will have a substantial role in determining which cases are examined, it would be all too easy for the DPP to pass the buck to the Court of Appeal to avoid taking all the public flak. All institutions are human, and the CPS is no different. The DPP should have a duty to consider that key issue at the earliest opportunity. He should justify his decision rather than shrugging his shoulders and saying that it is up to the Court of Appeal.

Lady Hermon: Is there not an illogicality here? The DPP and, subsequently, the Court of Appeal will be asked to examine the evidence. They must conclude that the evidence is new and compelling. The definition given of compelling evidence is that it is
''highly probable that the person is guilty of the offence.''
 On the one hand, the DPP must abide by that definition, but on the other—unfortunately, he does not have a deputy—he must put his hand on his heart and say that he can guarantee a fair trial. That is just not doable.

Dominic Grieve: The hon. Lady makes a good point. It is perfectly possible to think of circumstances in which compelling evidence exists but a fair trial may be impossible. For example, evidence may come to light that the defendant's DNA is present at the scene. However, since the original trial, the defendant has suffered a head injury, which everybody accepts makes it difficult for him to recall events. As a result, he will be unable to explain how his DNA might innocently have been found at the scene.
 That is a classic example of the kind of conundrum that might arise: compelling evidence exists that was not present at the previous trial, but since then the defendant has been put at a substantial disadvantage by something that is wholly unrelated to the offence and is not his fault. In those circumstances, the DPP should decide that the retrial cannot go ahead. However, it would be tempting for him to pass that buck to the Court of Appeal. The DPP must actively participate in the process. 
 The Minister may be able to reassure me that the amendment is not needed because of the public interest test, but we must bear it in mind that the media and the public will apply a great deal of—perfectly legitimate—pressure. They will want something done about the case. However, people who look at the clause will say that the defendant cannot receive a fair trial. If that is the case, the DPP must have the courage of his convictions. I want to ensure that that happens.

David Heath: I confess to having some difficulties with the amendment. I signed up to it along with my hon. Friend the Member for Southwark, North and Bermondsey in a fit of enthusiasm—which I have sustained—for the concept of the defendant receiving a fair trial. As will be clear from my hon. Friend's comments, one of our principal concerns is whether it is possible to achieve a fair trial in the prevailing circumstances. We are concerned as far as possible to
 increase the probability of a fair trial and reduce the probability of an unfair trial during proceedings under this part of the Bill. That led us to think it appropriate to support the amendment.
 Having given the matter careful thought, and notwithstanding the comments of the hon. Member for Beaconsfield, I wonder whether it really is the job of the Director of Public Prosecutions to determine the positive in this instance—that a defendant will receive a fair trial. He is in a position to make an assessment that a person is not capable of receiving a fair trial. It would then clearly not be in the public interest to proceed with an application. It is more difficult to place a duty on the DPP to establish whether the prevailing circumstances are fit for the defendant to receive a fair trial. That is my difficulty with the amendment as it is worded.

Dominic Grieve: First, I accept the hon. Gentleman's comment about the way in which the amendment is worded. I will not be pressing it to a vote. It is designed to flag up an anxiety, and if I have to return to it I shall word it differently, because ''will'' rather than ''could'' or ''would be able to'', suggests something slightly different. Secondly, I was simply suggesting that the DPP has to take such decisions at the moment, but the debate is not so focused because this issue does not normally feature in such a prominent way.

David Heath: Yes, although there is merit in the same criteria applying to the DPP in determining whether to mount a prosecution or to allow an application to the Court of Appeal for a retrial. It is clearly for the Court of Appeal to determine whether a fair trial can be held. We will come to that exceedingly difficult matter in our discussions on later clauses. It is clear that it cannot and will not be in the public interest for an application to proceed if it is clear to the DPP that a fair trial is impossible in the prevailing circumstances.
 The hon. Gentleman gave the example of a defendant who was not capable of testifying in his own defence because of circumstances occurring between the time of the offence and the time of the prosecution. The DPP would take that into account. That happens regularly in the normal course of prosecution. 
 There is a need for clarification, which I hope the Minister can provide. It should be made clear that the public interest is not served by an application—let alone a trial—proceeding in circumstances where it is clear or where the balance of probabilities is that the defendant would not receive a fair trial. That is something that the Minister can help us with. Although I do not support the amendment as it is worded, it has been helpful in stimulating this debate. I hope that it will encourage the Minister to give us a clearer view of how he expects this provision to work.

Hilary Benn: I agree with the hon. Gentleman. This is a helpful amendment because it gives me the opportunity to explain how the Government envisage issues relating to the possibility of a fair trial being considered under the relevant clauses.
 In resisting the amendment, my essential argument is that it is not necessary. Clause 63 already requires the DPP to take into account the public interest 
 consideration. My hon. Friends the Members for Wellingborough and for Wrexham (Ian Lucas) were right to identify the fact that the likelihood of a fair trial would have to be part of the consideration given to the public interest. Indeed, if the DPP did not think that a fair trial would be possible, how would he be able to conclude that it would be in the public interest to proceed? The involvement of the DPP—a prosecuting authority, not a judicial one—is the first stage of protection against a risk of a trial that would not be fair. 
 The second stage is the Court of Appeal. That is why clause 66(2) makes specific provision for the Court of Appeal, in determining an application, to have regard to whether it is likely that a fair trial, pursuant to the order, would be possible. That is another clear protection. The third protection, should a retrial take place, rests as in any other trial with the trial judge. If at any point during the trial the judge were to decide that a fair trial was not possible, the trial could be terminated. There are three protections in the process.

Lady Hermon: I shall not have a good night's sleep this evening unless the Minister clarifies a certain point. The DPP will have to conclude, in the words of clause 65, that
''it is highly probable that the person is guilty of the offence.''
 That would be the signal that the DPP would send. How can the Minister reconcile that provision with our human rights obligations under article 6.2 of the European convention on human rights, which states: 
''Everyone charged with a criminal offence shall be presumed innocent until proved guilty''?

Hilary Benn: That is not a new problem for the DPP or the CPS. Every day of the week, prosecutors have, on one hand, to weigh up strong evidence—after all, that is the crucial consideration for them in applying the two normal tests of whether there is a more than a 50 per cent. chance of conviction and whether it is in the public interest to proceed. On the other hand, the public interest test allows other considerations to be admitted, such as the fairness of the trial, the time that has elapsed since the offence and the health or age of the offender. There may be overwhelming evidence that a person has committed an offence, but the CPS may, in the course of its normal work, decide that because of such a consideration it is not appropriate for the case to proceed.

Lady Hermon: Will the Minister kindly cite any other legislation in which it is stated that the DPP must take the view that
''it is highly probable that the person is guilty of the offence''?
 Does any other legislation on the statute book contain such words?

Hilary Benn: I am advised that the consideration is one that applies in relation to the Court of Appeal. I must admit that I do not have the same difficulty that the hon. Lady does with the test that we are setting for the DPP. Clearly, we have recognised, because of the special nature of the provisions, that higher tests should be applied as a safeguard, but, as I pointed out,
 every day of the week Crown prosecutors see evidence that suggests that it is highly probable that a person committed an offence. Crown prosecutors take such a view regularly. For that reason, I do not see the difficulty that the hon. Lady is so concerned about.

Simon Hughes: I shall ask two specific questions on the same line of inquiry. At present, the CPS and the DPP decide whether there is more than a 50 per cent. chance of conviction and whether it is in the public interest to proceed. They ask themselves if there is a more than 50 per cent. chance of someone being found guilty of the offence beyond reasonable doubt. First, what is the difference between that judgment and a ''highly probable'' judgment? My assessment is that ''highly probable'' is the higher judgment, and therefore the judgments are different. Secondly, is there a fourth test? Law Officers intervene when the DPP refers a case to them. Are there any circumstances in which the DPP's decision would be taken only after seeking advice from the Solicitor-General or the Attorney-General? The Solicitor-General may want to answer that question.

Hilary Benn: I will have to reflect on the hon. Gentleman's second question. In response to the first, he is right to identify the fact that the DPP is required to apply a different test but it is for that reason that these are very special circumstances. There is no conflict. In relation to the public interest test among other things the DPP will still have to consider whether there is the possibility of a fair trial. As to the point raised by this probing amendment, if I have not satisfied the hon. Member for North Down, I hope that I have satisfied the other hon. Members who spoke that the DPP will give consideration to the matter.

Dominic Grieve: I am grateful for the Minister's assurances and mindful of what he said. I am mindful, too, of the other points made in the debate. In those circumstances, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Humfrey Malins: I want to raise briefly a matter to which I shall probably return when we consider clause 64.
 Under clause 63, the prosecutor can make his application to the Court of Appeal with the written consent of the Director of Public Prosecutions, who will have to weigh the information in his or her possession before reaching a conclusion. Will the Minister take us step by step through the practical happenings that would take place in such a situation? I have in mind whether there would be an opportunity for the defendant or his counsel to make representations to the DPP to be considered alongside those made to him by the prosecutor. I assume that the prosecutor will put a file before the DPP which, by definition, will be material that has not yet been challenged, or is not subject to questioning by any defendant or defence counsel. I wonder whether the DPP, before taking a decision, will in practice be obliged in principle to listen to representations made by the counsel for the defendant—if the person 
 exists—or some such person. I simply want to know whether the DPP is making an ex parte decision or one based not only on material from the prosecutor but on representations of any description from any other source.

Simon Hughes: My question a minute ago about advice from Law Officers may fall within this general context.
 I have seen the representations from the Bar Council, but I am not sure that it is right, so I would be grateful for clarification. It says of paragraph 9: 
''We note that the White Paper envisages one retrial only. However, we do note that there is no limit on the number of times that an application may be made to the Court of Appeal on the basis of 'fresh evidence'.''
 I should be grateful to know whether that it is technically correct and that there can be only two trials but there could be more than two applications for a second trial. If that is the case and someone could keep coming back to knock on the door, I should be grateful for an explanation from the Minister. I may be wrong, but it is not my proposition. 
 My final question was raised in the same submission. It is interesting and worth raising. I understand that this may be a matter of procedure in the DPP's office and more widely, but has consideration been given referring a case that has had a trigger pressed for consideration for retrial to a different police force to carry out the investigation? I believe that when there is concern about the investigation of an internal police matter or a matter of high public importance giving rise to public controversy it is the tradition and common practice for the police service that had the initial responsibility to ask for another, independent force's judgment. Again, I am asking about this rather than arguing for it, but one way of increasing confidence in the process of a second investigation is to have an independent review of the evidence by a second police force that is entirely unconnected with the initial inquiry.

Paul Stinchcombe: In respect of the hon. Gentleman's fear of repeat applications, I wonder why he is not satisfied with the wording of clause 63(5) which states:
''Not more than one application may be made under subsection (1) or (2) in relation to an acquittal.''

Simon Hughes: I had seen that, and the Bar Council must also have seen it. I asked the question because it suggested that that the criterion for a second application was fresh evidence, and I wondered whether there was some sort of slip rule that allowed a further application. I have read the provision and understand it.

Vera Baird: I think that the hon. Gentleman will find that the Bar Council's submissions to the Committee are about the White Paper and matters have moved on since then. I think that that accounts for his being misled.

Graham Allen: Unlike the Bar Council.

Vera Baird: Quite right.
 I invite the hon. Gentleman to look at clause 72(7) which allows the DPP to recommend what he suggested: that the investigation be carried out by a different police force.

Simon Hughes: I am grateful to the hon. and learned Lady. She may well be right. I asked for clarification only because I had been asked to do so. I understand the point that there is an option for the DPP. That is why I said that it is a matter of practice to seek an independent police force's judgment.

Ian Lucas: I want to make a brief point in the hope that I may allow the hon. Member for North Down a good night's sleep. It relates to the analogous case of a defendant who appeals against a conviction to the Court of Appeal, which finds that the conviction was unsafe and unsatisfactory and orders a retrial. In such circumstances, there would have been a determination of the charge faced by the defendant by a higher court. I submit that that would not prevent a jury at a later trial from having a completely open approach to the evidence presented. The same process would apply in relation to this clause.

Hilary Benn: I might now be able to answer the hon. Member for Southwark, North and Bermondsey by giving way to my right hon. and learned Friend the Solicitor-General.

Harriet Harman: Can my hon. Friend confirm my understanding of the position in regard to the request that was made by the hon. Member for Southwark, North and Bermondsey? Primary legislation can give powers either to the DPP or to the Attorney-General. If it gives powers to the DPP, the DPP exercises those powers independently, but under the superintendence of the Attorney-General, who is responsible to Parliament for the decisions, independently made under primary legislation, by the DPP. A power given to the DPP cannot be moved upstairs to the Attorney-General for a decision; it is the DPP's decision. The DPP will often discuss both general and specific issues with the Attorney-General, but the power and the responsibility remain with him or her. Is that not the case?

Hilary Benn: I am happy to confirm that in every particular. Who am I to disagree with a dot or comma of it?

Simon Hughes: What a double act.

Hilary Benn: Absolutely. I am very grateful. To answer the question about whether the defendant would have an opportunity to make representations to the DPP, it would not be the case any more than defendants have such an opportunity in other circumstances. However, specific provision is made for representations at the next stage in the process.
 The point about repeated applications has been dealt with by my right hon. and learned Friend. 
 The hon. Member for Southwark, North and Bermondsey asked about investigations conducted by another police force. Clause 72(7) says that the DPP may recommend that the investigation be conducted by officers of another force. I hope that that offers him the reassurance that he seeks. 
 Question put and agreed to. 
 Clause 63 ordered to stand part of the Bill.

Clause 64 - Determination by Court of Appeal

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: The Minister might prefer to deal with this later, under clause 72 on authorisation of investigations. However, I have an anxiety about this clause. I find it difficult to see how any investigation can take place that requires the defendant to be arrested or to answer questions until the Court of Appeal has decided to grant the application and quash the previous acquittal. One cannot be arrested for an offence for which one is currently subject to an acquittal procedure. There is then, according to clause 71, provision for a short period before the retrial. I should be interested to know—although it might be easier for the Minister to tell me tomorrow morning, or to indicate that we can better deal with the matter at a later stage—how, procedurally, the process of reinvestigation marries with the Court of Appeal determination and the short period under clause 71 after which the retrial is to occur. He may wish to ponder that overnight, as he now has around
 25 seconds—sorry, 10 minutes—in which to answer my questions.

Harriet Harman: Ten seconds.

Dominic Grieve: In that case, I shall leave it to the Minister to think about that, and perhaps we can return to it next Tuesday.

Hilary Benn: The hon. Gentleman has raised an important point. I am sure that it would be helpful to all Committee members to go through all the different clauses at the appropriate point, which may not be in the remaining seconds, because the way in which the clauses appear in the Bill is different from the way in which the timeline would operate. Indeed, I am happy to do that now if time does not prevent me.

Humfrey Malins: Speaking for myself, at the end of a long day, I would absorb the explanations better in the cold light of day at the start of a new sitting. I am struggling to concentrate. If the Minister wants to come back to the matter on Tuesday, I would be very happy for him to do that.
 Debate adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at nine minutes to Six o'clock till Tuesday 21 January at ten minutes past Nine o'clock.